MALPRACTICE ALERT! WINTER 2023

OBLIC lawyers’ professional liability (LPL) policies cover “Named Insured” attorneys as identified on the Schedule of Insureds in each issued policy. As attorneys join or exit a firm throughout a policy period, your issued policy must be updated to ensure the correct attorneys are covered by the policy.  

Adding and removing attorneys from your firm’s policy is quick and simple through the MyOBLIC portal. Simply navigate to www.oblic.com on a Google Chrome or Firefox browser and click Login at the top of the page. Once logged in, select the orange drop-down button “Request Changes to your Policy” and select “Add Attorney Coverage” or “Remove Attorney Coverage” as needed.  

When adding an attorney to your policy, you will need to identify the requested effective date, which may correspond with the date the attorney joined the firm. If the requested effective date is earlier than 60 days from the date of the request, then a No Known Claims Affirmation will be required. Further, you will then be asked for the attorney’s full name, bar number, state(s) and date(s) of admission, email address, full time or part time status, email address, whether the attorney is a member of the OSBA or the Ohio Bar College, and the requested prior acts date. 

When removing an attorney from your policy, you will be asked to select the attorney being removed and to identify the effective date of the change. The effective date may be as of the date requesting the change or later, but not earlier than the date of the requested policy change. 

When adding an attorney, your premium will be impacted, and you will receive a quote for the additional premium from your underwriter. Conversely, if removing an attorney, your premium will be adjusted, and you will receive notice of how that adjustment will be reflected on your account.  

Protecting your firm in the event of a claim of discrimination, wrongful termination, harassment and other claims, the Employment Practices Liability Endorsement (“EPLE”) will also apply to newly added attorneys unless your firm opted out of the endorsement. The $100 per attorney per policy year EPLE premium will also be added at the time of renewal. To learn more about EPLE from OBLIC, read our recent post here. 

If establishing an Of Counsel relationship with an attorney, there are a number of factors to consider in such an arrangement. In addition to coverage considerations, the Rules of Professional Conduct govern aspects of an Of Counsel arrangement. Before entering into an Of Counsel arrangement, you may wish to consult with an ethics attorney. Remember that one benefit of your OBLIC LPL policy is a complimentary ethics consult per insured attorney per policy period. Read on to learn more about complimentary ethics consults and contact OBLIC’s Loss Prevention attorneys to set up your consult. 

* Please refer to the OBLIC policy and contact your underwriter for more information. 

In our Fall edition of the OBLIC Malpractice Alert, we mentioned ethics consults as part of OBLIC’s Loss Prevention services. We wanted to take a moment to emphasize this valuable benefit that is complimentary with all OBLIC LPL policies. 

Attorneys insured by OBLIC are entitled to an ethics consultation of up to one hour per policy period with one of the experienced ethics attorneys on our panel. Not subject to your deductible nor impacting your premium, these ethics consultations can be used at your discretion for a variety of practice management or client relations questions. Often, our insured attorneys would like a reliable, professional opinion on the following types of questions or concerns:  

• Conflicts of interest and obtaining informed consent to a conflict 
• Departure of a partner, attorney’s impending retirement, or dissolution of a firm 
• File retention practices or responding to a request for a client file 
• IOLTA recordkeeping requirements and best practices 
• Reviewing advertising materials for compliance with Rules of Professional Conduct 
• Representation agreements and terminations or withdrawals from representation 

Consultations with experienced ethics attorneys provide valuable insight and dependable answers. Consultations are confidential and the content and recommendations of the consultation are not reported back to OBLIC. At the conclusion of the consultation, an insured attorney may retain (at her own cost) the ethics attorney for further representation.  

We encourage insured attorneys to take advantage of this industry-leading benefit by contacting Director of Loss Prevention Gretchen Mote at [email protected] or Loss Prevention Counsel Merisa Bowers at [email protected].  

If you ever plan to motor west 
Travel my way, take the highway that’s the best 
Get your kicks on Route 66 

It winds from Chicago to LA 
More than two thousand miles all the way 
Get your kicks on Route 66 

Now you go through Saint Louis 
Joplin, Missouri 
And Oklahoma City looks mighty pretty 
You’ll see Amarillo 
Gallup, New Mexico 
Flagstaff, Arizona 
Don’t forget Winona 
Kingman, Barstow, San Bernardino 

Won’t you get hip to this timely tip 
When you make that California trip 
Get your kicks on Route 66 

(Get Your Kicks on) Route 66, Bobby Troup (1946, Capitol Records) 

Find yourself not just traveling but perhaps practicing along Route 66 and you’ll need to stay hip to this timely tip: be alert to nuanced interpretations and evolving attitudes regarding multijurisdictional practice. As we previously reported, Ohio adopted amendments to Ohio Rule of Professional Conduct 5.5 in 2021. This largely adopts the counterpart ABA Model Rule 5.5.  

The subject of abundant debates and ink is the tension that arises when an attorney is physically located in a jurisdiction where they are not licensed. A growing trend following technology advances in the last two decades, the pandemic spiked the issue to the forefront of legal ethics scholars’ minds as attorneys who once drove into offices in major metropolitan areas were now sitting at their kitchen table across a state line.  

The risk of physically “practicing” (researching, drafting, corresponding by email or text, appearing by video conference) in a jurisdiction where you are not licensed is the inadvertent unauthorized practice of law (“UPL”). For Ohio attorneys living out-of-state while continuing to practice remotely, special attention must be given to the state of residence’s rules related to UPL.  

The Board of Professional Conduct emphasized the importance of analyzing the locale’s professional conduct rules when an Ohio lawyer wishes to engage in the practice of law in another state. Opinion 2022-13 issued on December 9, 2022, addressed three questions: 

• Whether a lawyer may delegate the task of taking a deposition to a paralegal. (No.) 
• Whether an out-of-state lawyer not licensed in Ohio may take a deposition in Ohio. (Usually.) 
• Whether an Ohio-licensed attorney may conduct a deposition in a state where she is not licensed. (It depends on that state’s UPL rules, but Ohio’s rules prohibit an Ohio attorney from engaging in the unauthorized practice of law in another state.) 

Review the Opinion for further discussion of the elements necessary to appropriately analyze a specific situation. For more on UPL in Ohio, see the Ohio Supreme Court of Ohio’s Board on the Unauthorized Practice of Law. 

Would the 2021 amendment adding section (d)(4) to RPC 5.5 and the subsequent 2022 Advisory Opinion prevented one Kentucky attorney from having to appear before the Ohio Supreme Court? The Court in In re Application of Jones, 2018-Ohio-4182, determined that the Board of Commissioners on Character and Fitness was in error when it recommended that an attorney applicant for admission to Ohio be denied admission. A Kentucky attorney applied for admission without examination to practice in Ohio upon her employment with a Cincinnati-based law firm. She moved from the Louisville, KY area to Cincinnati and began practicing out of the firm’s Cincinnati office for Kentucky-related matters shortly after filing her application for admission. The question hinged on whether the attorney was providing legal services (albeit for Kentucky-related matters) on a “temporary basis” in Ohio, or whether due to her intentions to remain in Ohio if her application for admission was granted, she was violating RPC 5.5(c). The Court held:  

A lawyer who applies for admission without examination to the Ohio bar […] and thereafter provides legal services from Ohio in the jurisdiction where the applicant is already admitted to practice law pending the resolution of that application is providing services on a temporary basis because those services are transitory and will continue only until the application is resolved. 

Justice DeWine concurred in the judgment but disagreed with the majority, asserting that the rules and comments thereto were being mis-read, and that, by establishing an office, the applicant was not providing legal services on a “temporary basis.” Rather, Justice DeWine opined that R. 5.5(b) as applied to an attorney licensed in another state and not practicing Ohio law nor appearing before Ohio courts serves no state interest and thus violates the Ohio and US Constitutions. 

While it appears that at least some of Justice DeWine’s objections may have been resolved by the 2021 amendments to RPC 5.5, and specifically the addition of sections (d)(4) and (e), some legal ethicists continue to advocate for a greater reduction in state-based restrictions on multijurisdictional practice. In April of 2022, the Association of Professional Responsibility Lawyers advocated for sweeping changes to multijurisdictional practice suggesting that an attorney admitted anywhere in the U.S. should be allowed to practice across jurisdictions so long as they follow a particular state’s rules on appearing before that state’s courts and are competent under Rule of Professional Conduct 1.1. Though that may be a bridge too far for most states, many at a February 2023 ABA Center for Professional Responsibility Midyear Meeting agreed that Model Rule 5.5 “needs attention.” Until then, next time you find yourself traveling west from Chicago to LA, we encourage you to review each jurisdiction’s rules on the unauthorized practice of law if intending to provide legal services while physically located in a jurisdiction where you aren’t licensed. 

Legal malpractice, a civil tort rooted in negligence, is a complex legal realm in Ohio. The state’s landscape on legal malpractice is shaped by key cases which define the elements. Legal malpractice case law often addresses the statute of limitations and the intricacies of attorney-client relationships. 

Unless you practice professional negligence law, we thought you might find a short primer useful and interesting. Understanding the elements of the tort may help put into context loss prevention recommendations and malpractice avoidance tips. Over the next few Malpractice Alerts, we’ll explain the elements of legal malpractice, and some common affirmative defenses. This quarter we’ll cover the first element of duty. 

Duty: The Existence of an Attorney-Client Relationship 

The cornerstone of legal malpractice is the attorney-client relationship. The existence of the relationship must be established by the client’s reasonable belief that they are represented by the attorney named as the defendant, supported by communications by the lawyer, but not necessarily reduced to a representation agreement. However, written correspondence such as a fee agreement or termination letter can also limit the scope of the relationship or terminate it completely. This is another reason OBLIC stresses the need for clear written communication about what representation the lawyer is undertaking. 

Generally, Ohio does not recognize a duty owed by lawyers to non-clients, and Ohio case law has upheld the “traditional rule that a lawyer cannot be held liable to a plaintiff unless the plaintiff is in privity with the client.” Nemeth, John C. Legal Malpractice in Ohio, 40 Cleve.St.L.Rev. 143 (1992). While there are limited exceptions, only parties to the contract (or legal relationships) have standing to bring a legal malpractice action and generally, malpractice claims are not assignable. 

Summary judgment is a possibility when there’s no material fact in dispute that supports the presence of an attorney-client relationship, or when the alleged harm arose from a matter outside the scope of representation. Such a scenario is highlighted by various cases including Ratonel v. Roetzel & Andress, 147 Ohio St.3d 485 (2016). In Ratonel, the Ohio Supreme Court invoked Rule of Professional Conduct 1.2(c), which allows attorneys to limit the scope of their representation. This rule became pivotal in the case as the engagement letter between Ratonel and Roetzel & Andress explicitly outlined the scope of representation, specifically for the “purchase of Holden House Apartments in Dayton, Ohio.” Notably absent from this agreement was any reference to the “French Village” transaction, a crucial detail that became the focal point of the subsequent legal malpractice claim. 

The court’s analysis of the engagement letter revealed a deliberate limitation on the scope of representation in alignment with Rule 1.2(c). The Court determined that the attorneys had no intention, as evidenced by the letter, to represent Ratonel concerning the alleged malpractice related to the French Village transaction.  

“It is clear to us that the engagement letter limited the scope of representation in conformity with Prof.Cond.R. 1.2(c). It is equally clear that nothing in the letter indicates an intention on the part of appellants to represent Ratonel and her companies with respect to the alleged malpractice regarding the purchase of French Village.” Id. at 487. 

This decision underscored the significance of transparent communication in delineating the boundaries of attorney-client relationships and, subsequently, averting potential legal malpractice claims. Ratonel underscores the importance of clearly defining the scope, essential to preventing legal malpractice claims arising from misunderstood or unfulfilled expectations. 

Stay tuned for Navigating Legal Malpractice – Element #2: Breach of Duty in our next quarterly edition of Malpractice Alert! 

To date in 2023, the Ohio Board of Professional Conduct has issued thirteen Advisory Opinions.  Advisory Opinions are nonbinding responses to hypothetical inquiries regarding the application of Ohio Rules of Professional Conduct. These opinions do not necessarily reflect the opinion of the Supreme Court of Ohio but are intended to guide licensed attorneys. Advisory Opinions issued from 1986 forward can be searched by keyword or subject matter here. 

Opinions 2023-01 and 2023-02 were summarized in the Malpractice Alert Spring 2023, Opinions 2023-03 – 2023-06 were reviewed in the Malpractice Alert Summer 2023, Opinions 2023-07 and 2023-08 were discussed in the Malpractice Alert Fall 2023.  

This Malpractice Alert will discuss Opinions 2023-09, 2023-10, and 2023-11, issued October 6, 2023, and Opinions 2023-12 and 2023-13, issued December 8, 2023.

Tasks for this quarter look ahead to the new year and focus on planning. The Fall Malpractice Alert discussed new Proactive Management-Based Regulation requirements established in the Ohio Supreme Court’s Rules for the Governance of the Bar. Here we’re giving practical guidance for attorneys in private practice to have a plan to manage their work or caseload if the attorney is temporarily or permanently unable to practice. 

January 

Review your office policies and procedures to determine if you clearly set out “who does what.”  

If you don’t have this in place, begin the process to do it! See Best Practices – Office Procedure Manual    

February 

Clarify the steps for each attorney, their spouse/life partner, and where applicable, adult children, to notify the person(s) at the law firm in a temporary or permanent absence. Contact numbers should be in each caller and law firm person’s cell phones.  

See Covering Short-term Absences. 

March 

Update your succession plan. Look at current attorneys and any planned departures. Don’t have a succession plan? Get started on it NOW! See Business Succession Planning: Designating a Successor Attorney. 

The Supreme Court of Ohio accepted public comment on Proposed Amendments to the Rules for the Government of the Bar of Ohio and Ohio Rules of Professional Conduct on Attorney Specialization. The rule change to the Gov. Bar Rules would allow any organization, including those not accredited by the commission, to certify attorneys as specialists. The changes would also eliminate language in Prof.Cond.R. 7.4. Stay tuned for developments in this and its impact on attorney specialization.